Archive for the ‘Judicial Campaigns’ Category

Professor James Sample (Hofstra), formerly of Brennan Center fame, has just completed two fine works on Caperton and state court responses. Here is the abstract to the first, which provides a good current-events survey of post-Caperton developments and can be found in this year’s Joint American Judicature Society-Drake Law Review Symposium:

This Article considers the significant state court reform developments in the year following the Supreme Court’s landmark decision in Caperton v. A.T. Massey Coal Co., as well as ancillary federal developments, including renewed congressional interest in judicial disqualification. Picking up on the author’s view that “paradoxically for a decision overturning a state justice’s non-recusal, the majority’s approach is a model of cooperative federalism,” the Article focuses primarily on the initial developments pertaining to money in the courts in Wisconsin, Michigan, and West Virginia in the short period since the decision. The Article notes that while recusal practices have certainly been one focal point of developments in the states, Caperton has also provided a significant boost to judicial public financing. After considering tangible developments in the three identified states, the Article briefly points to more nascent judicial independence efforts in other states, in which Caperton connections are less direct, but where the case is nonetheless figuring prominently in rejuvenated efforts to modify judicial selection practices. The Article asserts that, while not all of the post-Caperton developments have improved the judicial impartiality landscape, on balance, the decision is already producing meaningful improvements in protecting the courts from the influence of money.

Prof. Keith Swisher has posted a draft of his forthcoming article on pro-prosecution judges, judicial elections, and disqualification. Here is the abstract:

In this Article, I take the most extensive look to date at pro-prosecution judges and ultimately advance the following, slightly scandalous claim: Particularly in our post-Caperton, political-realist world, “tough on crime” elective judges should recuse themselves from all criminal cases. The contextual parts to this claim are, in the main, a threefold description: (i) the “groundbreaking” Caperton v. A.T. Massey Coal decision, its predecessors, and its progeny; (ii) the judicial ethics of disqualification; and (iii) empirical and anecdotal evidence of pro-prosecution (commonly called “tough on crime”) campaigns and attendant electoral pressures. Building on this description and the work of empiricists, we bridge the gap between these tough-on-crime campaign promises and subsequent tough-on-crime adjudications. And in the final analysis, the thesis — namely, that tough-on-crime judges should recuse themselves in most, and probably all, criminal cases in light of personal and systemic biases — is corroborated not just by Supreme Court reasoning and language, but even more importantly (at least from my perspective as an ethics professor), by the rules of judicial ethics. Thus, pro-prosecution judges and their not-too-sophisticated message — “me tough on crime, you soft on crime” — should cease and desist or be ceased and desisted.

Parts. Part I briefly describes elective judicial selection systems and thoroughly describes “tough-on-crime” judges, their messages, and their motivations. Part II, the core of the analysis, runs tough-on-crime judges through the constitutional, ethical, and other-legal frameworks of disqualification. All of these frameworks — some four or five different legal and ethical barriers, depending on one’s jurisprudential view — ultimately lead to the same place, mandatory disqualification. Part III critically appraises elective systems, the theoretical and economical costs that those systems impose on judges and litigants, and the alternatives, including broadly or narrowly targeted disqualification, public financing, and forced silence. By the Conclusion, the analysis has pointed strongly toward a broad-based, mandatory-disqualification remedy.

The Wisconsin Supreme Court recently became the first state court to take post-Caperton, rule-based action. (Michigan recently became the second; for more information, click here.) Putting the merits to the side — ignoring them altogether, actually — the Wisconsin Supreme Court should be commended for taking expeditious action following the Supreme Court’s groundbreaking Caperton decision. The praise ends there, unfortunately. In a puzzling, recalcitrant move, the court adopted two rule amendments that appear to ignore both Caperton and its interpretation of the Due Process Clause. Combining the amendments, they essentially state that contributions or expenditures — from any source and irrespective of amount — to elective judges in Wisconsin do not alone warrant recusal/disqualification. That is not a brief restatement, but rather, a nearly exhaustive statement of the amendments (to verify, click here and here for the full text of the adopted amendments). A state supreme court rule purporting to limit the reach of Caperton and constitutional due process seems anomalous; how such amendments are anything but scoffing and heel-digging remains to be explained. Interestingly, the vote of the court was a deep split of 4-3, with Justice Gableman in the majority.

One point of caution, at this early stage, is that we are reading from mere tealeaves. The Wisconsin Supreme Court has not as yet published its orders or issued a press release. One can hope that the court will explicate in what ways, if any, these amendments constitute learned contributions to the law of disqualification.

The Drake Law Review and the American Judicature Society are pleased to announce the Seventh Annual American Judicature Society-Drake Law Review Symposium Issue: The State of Recusal: Judicial Disqualification, Due Process, and the Public’s Post-Caperton Perception of the Integrity of the Justice System.

The United States Supreme Court’s recent decision in Caperton v. A.T. Massey Coal Co. settled that due process requires an objective analysis of the question of judicial impartiality. However, like most Supreme Court decisions, it raised as many questions as it answered. Most obviously, the Caperton decision raised questions about the effects of judicial campaign spending on judges’ perceived and actual impartiality. In addition, Caperton presents questions about the role of federal courts in ensuring impartiality in state courts. And at the deepest level, the debate about judicial disqualification raises questions about due process guarantees in the context of elected judiciaries. The debate over judicial disqualification should be broadened in light of these issues. The Drake Law Review is seeking articles that address issues implicated by judicial disqualification, including, but not limited to, the following considerations:

• The First Amendment implications of the decision in Caperton;

• How state courts should implement the holding in Caperton in their codes of judicial conduct;

• The answers to Chief Justice Roberts’s 40 questions;

• The balance between the various competing values implicated by judicial disqualification;

• Issues relating to standards and procedures for judicial disqualification;

• The unique challenges relating to judicial disqualification in small jurisdictions and on appellate courts;

• The effect of judicial disqualification on the popular legitimacy of the judicial system.

Articles from all backgrounds will be considered, from academic evaluations of the law to empirical studies on judicial disqualification rules and procedures. The Drake Law Review invites you to participate in this collaboration by submitting an article to be published in this highly regarded issue of the Review. If you would like to participate in this unique collaborative effort, please contact the Editor in Chief of the Drake Law Review as soon as possible. All general topic proposals must be submitted by December 4, 2009. The deadline for completed articles is January 29, 2010. Final decisions regarding publication are made by the Drake Law Review. Drake Law Review, 2507 University Avenue Des Moines, Iowa 50311 Phone: (515) 271-2930; Fax: (515) 271-4926; email: law.review@drake.edu; http://students.law.drake.edu/lawreview

In addition to other repercussions, the U.S. Supreme Court’s June decision in Caperton v. A.T. Massey Energy, 129 S. Ct. 2252 (2009), may help the states defend restrictions on political and campaign activity in their codes of judicial conduct. Since the Court’s 2002 decision, in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), numerous First Amendment lawsuits have been filed in federal courts, usually by right-to-life organizations, and many (although not all) have succeeded in overturning restrictions on what judges and judicial candidates can say, how they can raise funds, and whether they can be involved in other candidates’ campaign and partisan politics. (For a discussion of the caselaw after White, click here.)

In the first post-Caperton decision, however, the U.S. District Court for the Northern District of Indianaupheld the constitutionality of canons in Indiana’s revised code of judicial conduct that prohibit judges and judicial candidates from making pledges, promises, and commitments; require disqualification based on a prior commitment; prohibit judges and judicial candidates from acting as a leader or holding office in or making speeches on behalf of a political organization; and prohibit judges and judicial candidates from soliciting funds for, paying an assessment to, or making a contribution to a political organization or a candidate for public office and personally soliciting or accepting campaign contributions other than through a campaign committee. Bauer v. Shepard, Opinion and Order (July 7, 2009). The court relied in part on Caperton.

Although the parties disagree about what bearing the Supreme Court’s decision in Caperton should have on this Court’s ruling in this case—the Supreme Court did after all repeatedly note the exceptional, extraordinary, and extreme facts of that case—Caperton does illustrate that judicial elections and judicial conduct (including the issue of recusal) can have important due process of law implications. Additionally, the Caperton Court noted that the state codes of judicial conduct “serve to maintain the integrity of the judiciary and the rule of law,” and it quoted approvingly the following statement from the amicus curiae brief filed by the Conference of Chief Justices: “the codes are ‘[t]he principal safeguard against judicial campaign abuses’ that threaten to imperil ‘public confidence in the fairness and integrity of the nation’s elected judges.’” . . . For the Court, a state’s interest in judicial integrity is “vital” and “of the highest order”: “Courts, in our system, elaborate principles of law in the course of resolving disputes. The power and the prerogative of a court to perform this function rest, in the end, upon the respect accorded to its judgments. The citizen’s respect for judgments depends in turn upon the issuing court’s absolute probity. Judicial integrity is, in consequence, a state interest of the highest order.”

The court also relied extensively on the preamble and comments to the Indiana code, which were based on the ABA 2007 Model Code of Judicial Conduct (the Indiana preamble is identical to the model; the comments are not although they are similar).

Although the litigation such as that necessary to resolve the Senate race between Al Franken and Norm Coleman is fortunately extremely rare, it demonstrates the importance of having a non-partisan judiciary available to resolve such conflicts. Fortunately for Minnesotans, their legislature has declared that judicial elections should be non-partisan, and the Minnesota Supreme Court has implemented that decision by adopting a code of judicial conduct that prohibits judges and judicial candidates from endorsing political candidates and engaging in other partisan activity. Therefore, none of the justices on the Minnesota Supreme Court had to recuse themselves because they had endorsed Franken or Coleman (although two had to recuse because they were on the state-wide canvassing board), and the majority of the highest court in the state was available to do the job for which they were elected – decide the most important legal issues for the people of the state. Fortunately, a federal court recently rejected a challenge to the Minnesota endorsement clause so that, if a similar situation arises in the future, the same protections will apply. Wersal v. Sexton, 607 F. Supp. 2d 1012 (District of Minnesota 2009). The plaintiff in that case had argued that disqualification would protect judicial impartiality, but the court disagreed, focusing on the un-workability of recusal not in the rare case but “when a judge endorses an individual who is elected to a position where he or she is frequently a litigant.”

Wisconsin is not so fortunate, as a federal court there overturned the endorsement clause and other restrictions on partisan political activity even though judicial elections are supposed to be non-partisan by law. Siefert v. Alexander, 597 F. Supp. 2d 860 (Western District of Wisconsin 2009). The court believed the “gag order” was not “fooling anyone” because “many if not most judicial candidates have political lives before their judicial campaigns and often are easily identified as ‘Republican’ or ‘Democrat’ even if they do not explicitly run as such.” What the court fails to recognize is that by requiring judicial candidates to eschew party labels during the campaign, the code ensures that judicial candidates demonstrate their willingness to take on a new role and reject partisan loyalties and embrace judicial independence once on the bench.

As we predicted, the Supreme Court has voted five to four in general favor of the Due Process Clause and disfavor of judicial electioneering. Justice Kennedy authored the opinion concluding that Justice Benjamin harbored a serious, objective “probability of bias” when he refused to recuse himself in a case involving his biggest supporter from his previous — and perhaps future — election. Justice Benjamin also chose the two replacement jurists for the two justices who did recuse themselves from the case.

The new (or perhaps more accurately, old-but-newly-fashioned) test has several formulations and considerations. In essence, the Court held “that Blankenship’s significant and disproportionate influence—coupled with the temporal relationship between the election and the pending case—’offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.’” Lavoie (quoting Monroeville in turn quoting Tumey). Stated slightly differently, there is “a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.” The opinion drew out two elements of the test: (i) election influence and (ii) case status. The former inquiry “centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.” The Court clarified that “[w]hether campaign contributions were a necessary and sufficient cause of Benjamin’s victory is not the proper inquiry.” The Court also focused on the status of any impending or pending case. The opinion has a heavy undercurrent that no one should get to choose — even with good money — their own judge in a pending matter. As the Court put it, the “temporal relationship between the campaign contributions, the justice’s election, and the pendency of the case is also critical. It was reasonably foreseeable, when the campaign contributions were made, that the pending case would be before the newly elected justice.” The principle seems simple and sound enough: “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the consent of the other parties—a man chooses the judge in his own cause.”

Interestingly, the dissenters argued that the decision will create an increase, if not a flood, in “Caperton claim[s].” Assuming those claims are meritorious — and judicial elections do provide fertile grounds for such claims — we should thank this watershed decision and welcome the flood.

The full text of the opinion, as well as the dissents of Chief Justice Roberts and Justice Scalia, can be found here.

In Caperton, Chief Justice Roberts dismissed the majority’s “probability of bias” test, calling it a “cure . . . worse than the disease.” He believes that the “Court’s new ‘rule’ provides no guidance to judges and litigants about when recusal will be constitutionally required,” which “will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be,” which in the end, “will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.” His consequence connector seems miscalibrated. It is exceedingly odd to claim that remedying this “extreme case” — one in which every justice, and the polled public, seem to agree bruises the perception of impartiality — will “erode public confidence in judicial impartiality.” As an umpire who merely calls balls and strikes, perhaps the Chief Justice needs to get back in the game and out of the policy incubator. His dissent is notable, but not because of these loose causal connections involving hypothetical challenges, but because it has attracted significant attention through the casting of forty questions — forty questions that the majority’s analysis allegedly cannot answer. While some commentators have hailed the questions as an indication of infirmities in the majority’s analysis (e.g., “bad facts make bad law”), I respectfully dissent from the dissent; every question, save one or two, can be answered (and the ones that cannot seem to reflect more poorly on the questioner’s drafting than the majority’s analysis). As a preliminary matter, I note again that an umpire who merely calls balls and strikes should be less concerned with questions not before the court, and indeed, every case could spawn a multitude of forward-looking questions not raised by the facts at hand, but let’s play the game these objections notwithstanding. Proposed answers are in bold following the applicable questions.

1. How much money is too much money? What level of contribution or expenditure gives rise to a “probability of bias”? Without supplying any facts, this question should be answered with the majority’s test: “When a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.” In other words, “Due process requires an objective inquiry into whether the contributor’s influence on the election under all the circumstances ‘would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.’”

2. How do we determine whether a given expenditure is “disproportionate”? See answer to question 1. Disproportionate to what? The majority answered this one as well: “in comparison to the total amount contributed to the campaign, as well as the total amount spent in the election.”

3. Are independent, non-coordinated expenditures treated the same as direct contributions to a candidate’s campaign? No, the latter support is worse—the influence is more direct. What about contributions to independent outside groups supporting a candidate? The question must be initially answered with a question: What “independent outside groups”? But as general matter, yes, that the contributions were to some “independent outside groups” should be considered and could in the abstract be mitigating.

4. Does it matter whether the litigant has contributed to other candidates or made large expenditures in connection with other elections? Probably not (unless the other contributions and/or expenditures were to the judge’s opponent in the same race – a rather unlikely and self-defeating scenario).

5. Does the amount at issue in the case matter? It could. What if this case were an employment dispute with only $10,000 at stake? It could, if the case was so patently miniscule to the supporter as not to risk offending him/her/it no matter what the disposition. If the question is cast toward the other side’s perspective, however, the amount in dispute is irrelevant—every litigant is entitled to a fair trial before a fair judge. What if the plaintiffs only sought non-monetary relief such as an injunction or declaratory judgment? No, the form of relief sought is generally irrelevant.

6. Does the analysis change depending on whether the judge whose disqualification is sought sits on a trial court, appeals court, or state supreme court? No.

7. How long does the probability of bias last? So long as support matters to holding the office and so long as a strong debt of gratitude lasts. Does the probability of bias diminish over time as the election recedes? Probably, but it depends primarily on his next question: Does it matter whether the judge plans to run for reelection? Yes.

8. What if the “disproportionately” large expenditure is made by an industry association, trade union, physicians’ group, or the plaintiffs’ bar? Same analysis as above. Must the judge recuse in all cases that affect the association’s interests? Surely yes with respect to the pending case, but perhaps yes with respect to (unspecified) others as well. Must the judge recuse in all cases in which a party or lawyer is a member of that group? Not all, but the question does not allow for anything beyond speculation. Does it matter how much the litigant contributed to the association? Yes, it matters.

9. What if the case involves a social or ideological issue rather than a financial one? Must a judge recuse from cases involving, say, abortion rights if he has received “disproportionate” support from individuals who feel strongly about either side of that issue? Is the “support” financial? If yes, then yes. If the supporter wants to help elect judges who are “tough on crime,” must the judge recuse in all criminal cases? Of course, we need to know whether the supporter had a particular case pending in which she had a multi-million dollar interest. If not, then generally no, recusal would not be required in all criminal cases, although an argument can be advanced forcefully that the Constitution is violated when you combine judicial elections with criminal cases, particularly in situations in which the judge’s influential supporters demand toughness on crime and would withhold support in its absence.

10. What if the candidate draws “disproportionate” support from a particular racial, religious, ethnic, or other group, and the case involves an issue of particular importance to that group? This question is void for vagueness.

11. What if the supporter is not a party to the pending or imminent case, but his interests will be affected by the decision? Does the Court’s analysis apply if the supporter “chooses the judge” not in his case, but in someone else’s? If the judge would probably be concerned about the effect of the pending case on his supporter (or the supporter would probably be concerned about the judge’s fidelity), then probably yes.

12. What if the case implicates a regulatory issue that is of great importance to the party making the expenditures, even though he has no direct financial interest in the outcome (e.g., a facial challenge to an agency rulemaking or a suit seeking to limit an agency’s jurisdiction)? The parenthetical example seems contradictory – there certainly could be a strong financial interest motivating the facial challenge. But assuming there is not, we would be dealing with more attenuated corrupting forces.

13. Must the judge’s vote be outcome determinative in order for his non-recusal to constitute a due process violation? No.

14. Does the due process analysis consider the underlying merits of the suit? Does it matter whether the decision is clearly right (or wrong) as a matter of state law? No (although it could be circumstantial evidence of an actually biased judge).

15. What if a lower court decision in favor of the supporter is affirmed on the merits on appeal, by a panel with no “debt of gratitude” to the supporter? Does that “moot” the due process claim? No. Constitutionally unbiased judges are required at every level.

16. What if the judge voted against the supporter in many other cases? Yes, it could matter, as it could show (among other things) no debt of gratitude or expectation of future support.

17. What if the judge disagrees with the supporter’s message or tactics? What if the judge expressly disclaims the support of this person? Yes, that could matter.

18. Should we assume that elected judges feel a “debt of hostility” towards major opponents of their candidacies? Yes, although the term “hostility” is a bit loaded. Must the judge recuse in cases involving individuals or groups who spent large amounts of money trying unsuccessfully to defeat him? Possibly, but the question lacks sufficient circumstances.

19. If there is independent review of a judge’s recusal decision, e.g., by a panel of other judges, does this completely foreclose a due process claim? Although independent review should be the procedure adopted for all, or virtually all, motions to disqualify, the commendable procedure does not eliminate the due process inquiry. For example, these “independent” judges could be members of the same court and thus hesitant to disqualify their colleague, friend, and neighbor. On a more basic level, a state procedure cannot trump the Constitution.

20. Does a debt of gratitude for endorsements by newspapers, interest groups, politicians, or celebrities also give rise to a constitutionally unacceptable probability of bias? They could. How would we measure whether such support is disproportionate? Same or similar methods and tests.

21. Does close personal friendship between a judge and a party or lawyer now give rise to a probability of bias? Arguably yes, and as a practical matter, it always has (although it should be noted that many good judges bend over backwards to avoid actual bias in such cases).

22. Does it matter whether the campaign expenditures come from a party or the party’s attorney? Yes, if the latter, the influences are more attenuated. If from a lawyer, must the judge recuse in every case involving that attorney? If the attorney is to the judge as Blankenship was to Justice Benjamin, then yes.

23. Does what is unconstitutional vary from State to State? Never. What if particular States have a history of expensive judicial elections? Whether and in what form the state holds judicial elections matter, but their overall expensiveness likely would not matter. The test would be the same, just with fewer zeros after the applicable numbers.

24. Under the majority’s “objective” test, do we analyze the due process issue through the lens of a reasonable person, a reasonable lawyer, or a reasonable judge? This is perhaps the first “good” question. In the case, however, all three actors would come to the same conclusion—recusal. As a general matter and as a matter of substantive recusal law, the actor probably should be the reasonable judge.

25. What role does causation play in this analysis? The Court sends conflicting signals on this point. The majority asserts that “[w]hether Blankenship’s campaign contributions were a necessary and sufficient cause of Benjamin’s victory is not the proper inquiry.” But elsewhere in the opinion, the majority considers “the apparent effect such contribution had on the outcome of the election,” ante, at 14, and whether the litigant has been able to “choos[e] the judge in his own cause,” ante, at 16. Yes, causation matters, but it need not be the sole, isolated cause of victory. If causation is a pertinent factor, how do we know whether the contribution or expenditure had any effect on the outcome of the election? It should not be terribly difficult—election success has been analyzed (often correctly) for a long time.Moreover, as the majority noted, the task becomes easier once we acknowledge that we are dealing with probabilities, not actualities. What if the judge won in a landslide? Yes, that matters. What if the judge won primarily because of his opponent’s missteps? Yes, that matters as well.

26. Is the due process analysis less probing for incumbent judges—who typically have a great advantage in elections—than for challengers? No, it is not less probing, but such a “great advantage” should be considered wherever actually applicable.

27. How final must the pending case be with respect to the contributor’s interest? What if, for example, the only issue on appeal is whether the court should certify a class of plaintiffs? Is recusal required just as if the issue in the pending case were ultimate liability? Absolutely.

28. Which cases are implicated by this doctrine? Must the case be pending at the time of the election? No, it must be reasonably likely to be brought. Reasonably likely to be brought? What about an important but unanticipated case filed shortly after the election? If it is truly “unanticipated,” then the litigant certainly did not “choose” the judge in her own case. This fact alone, however, would not be dispositive.

29. When do we impute a probability of bias from one party to another? Does a contribution from a corporation get imputed to its executives, and vice-versa? By casting the legal fictions aside, the answer will become clear or clearer.And obviously, in light of the Court’s holding, imputation can occur from a chief executive to the corporation. Does a contribution or expenditure by one family member get imputed to other family members? Probably, but not necessarily.

30. What if the election is nonpartisan? It could matter, but without facts, it is unclear. What if the election is just a yes-or-no vote about whether to retain an incumbent? For anyone familiar with retention elections, this fact definitely matters. For one, almost all judges up for retention are retained. Moreover, it is much harder to “choose” your judge (save your one vote) at the retention election stage – it is much easier (but still difficult) to oust a judge.

31. What type of support is disqualifying? What if the supporter’s expenditures are used to fund voter registration or get-out-the-vote efforts rather than television advertisements? This twist could matter. Among other factors, one would need to look at the causal link between these activities and electoral success and the expectation of future support.

32. Are contributions or expenditures in connection with a primary aggregated with those in the general election? Yes. What if the contributor supported a different candidate in the primary? Does that dilute the debt of gratitude? Perhaps slightly.

33. What procedures must be followed to challenge a state judge’s failure to recuse? May Caperton claims only be raised on direct review? A strong candidate for an interlocutory appeal exception. Or may such claims also be brought in federal district court under 42 U. S. C. §1983, which allows a person deprived of a federal right by a state official to sue for damages? Perhaps, but it seems unlikely that pecuniary “damages” would be permitted. If §1983 claims are available, who are the proper defendants? The judge? Yes. The whole court? Probably not. The clerk of court? Probably not.

34. What about state-court cases that are already closed? Can the losing parties in those cases now seek collateral relief in federal district court under §1983? Perhaps. What statutes of limitation should be applied to such suits? The “statute of limitations” should not be an immediate issue—as Tuesday would have been the first day on which it should start to run.

35. What is the proper remedy? After a successful Caperton motion, must the parties start from scratch before the lower courts? Yes (unless the now-disqualified judge sat at the appellate level). Is any part of the lower court judgment retained? No.

36. Does a litigant waive his due process claim if he waits until after decision to raise it? Probably (particularly in this instance—when the constitutional-rights waiver is not inadvertent, but instead a tactical decision that could lead to, among other things, wasted judicial proceedings). Or would the claim only be ripe after decision, when the judge’s actions or vote suggest a probability of bias? No.

37. Are the parties entitled to discovery with respect to the judge’s recusal decision? They should be so entitled at least with respect to facially meritorious claims.

38. If a judge erroneously fails to recuse, do we apply harmless-error review? This is the second or third good question out of forty. Just a prediction, but courts will probably say “no.” [Again, however, it is a good question, and I personally have flip-flopped on the answer.]

39. Does the judge get to respond to the allegation that he is probably biased, or is his reputation solely in the hands of the parties to the case? The judge gets to respond in his ruling on the disqualification motion (or sua sponte in his recusal ruling).

40. What if the parties settle a Caperton claim as part of a broader settlement of the case? Does that leave the judge with no way to salvage his reputation? Once the case is no longer pending, the judge could speak about the merits of the Caperton claim. The concern misses the mark a bit: One of the reasons these “perception”- or “appearance”-based tests have arisen is to avoid the ugly impact of implying, calling, and proving the judge actually biased. The Caperton-disqualified judge can still say – as has Justice Benjamin following the Supreme Court’s decision – that he was not actually biased.

* * *

Obviously, the answers above are not gospel, and by comment or otherwise, other answers are encouraged.

The Supreme Court recently released the transcript of the oral argument in the West Virginia disqualification case (see Justice for Sale?), which was argued on March 3, 2009. Because, for example, Justice Kennedy seemed favorably inclined [see, e.g., Tr. at 33], I am cautiously optimistic for a five-to-four decision in favor of due process.To read the full transcript, click here. My favorite lines include:

§JUSTICE STEVENS: “We have never confronted a case as extreme as this before. This fits the standard that Potter Stewart articulated when he said ‘I know it when I see it.’ (Laughter.)”

§COUNSEL FOR MASSEY COAL: “I understand the . . . concerns about having the [apparently biased] judge making the decision about whether recusal is required, but that is not the practice of this Court, and if it’s not the practice of this Court, I frankly doubt it’s unconstitutional.”

§JUSTICE BREYER: “The debt of gratitude . . . isn’t the theory that underlies [the due process challenge], though it may in part. . . . A normal human being also thinks, if I play my cards right, maybe [the substantial expenditure] will be repeated, and they’ll want to keep me in office. And we have the fact of how it looks, and we don’t have a situation where the something like this is inevitable, where you appoint judges.”

§JUSTICE SOUTER: “If one is going to go into that calculation, one is going to assume that in eight years, there’s going to be another three million dollars waiting to be spent.”

§JUSTICE BREYER: “Call [the proposed due process standard] a ‘probabilty’ [of bias]; call it an ‘appearance.’ Use the language that you want, but put them together, and they spell ‘mother.'”

§JUSTICE SCALIA: According to Justice Scalia’s rather trusting views of judicial elections, if someone were to contribute money to his hypothetical campaign, “that person contributed money to my election because he expected me to be a fair and impartial judge, and I would be faithful to that contributor only by being a fair and impartial judge. That is showing gratitude.”

(The following is on judicial elections and due process, from Understanding Lawyers’ Ethics (3d ed. 2004).I’m concerned that those on the court who are hostile to recusal (e.g., Justices Scalia and Breyer) will use the extreme facts of the W.Va. case to sharply limit the statutory and constitutional recusal requirement.)
The most important potential significance of White is the strong suggestion in the opinions of Justices O’Connor and Ginsburg (writing for a total of five justices) that no judge subject to reelection can decide a controversial case without violating due process.As discussed earlier in this chapter [9: “The Impartial Judge”], due process is denied if there is a “possible temptation to the average . . . judge . . . which might lead him not to hold the balance nice, clear, and true. . . .”There is substantial reason to believe that elective judges are influenced in controversial cases by the threat of being voted out of office.Particularly in a case involving issues like the death penalty or abortion rights, therefore, there is a strong argument that a decision by such a judge violates the Due Process Clause of the Fourteenth Amendment.
Indeed, Justice O’Connor’s concerns ultimately go beyond the controversial case, to challenge the entire system of electing judges.She concurs separately to express her objections to “judicial elections generally.” Referring to the state’s claim of a compelling interest in “an actual and perceived … impartial judiciary,” she notes that “the very practice of electing judges undermines this interest.”Defining impartiality as being free of any stake in the outcome of a case, she explains that when judges are subject to regular elections, “they are likely to feel that they have at least some personal stake in the outcome of every publicized case.” That is, elected judges “cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their reelection prospects.” Moreover, even when judges succeed in overcoming their concern with voters’ displeasure, “the public’s confidence in the judiciary could be undermined simply by the possibility that judges would be unable to do so.”
O’Connor refers to a law review article that quotes former California Supreme Court Justice Otto Kaus’ statement that ignoring the political consequences of controversial cases is like “ignoring a crocodile in your bathtub.”She also relies on an article that cites statistics indicating that judges who face elections are far more likely to override jury sentences of life without parole and impose the death penalty.
In addition, O’Connor discusses the pernicious effects of campaign fundraising in judicial elections, noting, for example, that the thirteen candidates in a partisan election for five seats on the Alabama Supreme Court in 2000 spent an average of $1,092,076 on their campaigns.Not surprisingly, lawyers and litigants who appear before the judges are among the major contributors to judges’ campaigns, and “relying on campaign donations may leave judges feeling indebted to certain parties or interest groups.”
When lawyers and litigants appear to be buying influence with campaign contributions, the appearance of partiality goes beyond the highly publicized case, tainting any case in which money may have passed.Thus, O’Connor’s ultimate due process challenge is to the entire system of judicial election of judges, in cases of both major and minor public interest.
Justice Ginsburg analyzes some of the Court’s most important cases requiring disqualification of state judges on due process grounds.Her analysis provides three conclusions.First, a litigant is deprived of due process where the judge who hears his case has a “direct, personal, substantial and pecuniary” interest in ruling against him.Second, the judge’s interest is sufficiently “direct” if the judge knows that “his success and tenure in office depend on certain outcomes.”Third, due process does not require a showing that the judge is biased in fact as a result of his self-interest.Rather, the cases have “always endeavored to prevent even the probability of unfairness.”
Ginsburg’s immediate focus in White is on the judge who has made or implied a commitment to voters to decide cases a certain way, and who fears voter retaliation if she fails to deliver.Her remarks, however, apply equally to any judge whose reelection may depend upon not offending voters in the next election.Such a judge may be thought to have a direct, personal, substantial, and pecuniary interest in ruling against certain litigants, Ginsburg notes, “for she may be voted off the bench and thereby lose her salary and emoluments” if her decision displeases the voters.Quoting The Federalist No. 79, she adds: “‘In the general course of human nature, a power over a man’s subsistence amounts to a power over his will.’”
The Chair of the ABA Commission on the 21st Century Judiciary[, Edward W. Madiera,] agrees.“The commission found,” he has written, “that the greatest threats to the impartiality and independence of judges, whether real or perceived, are posed by the prospect of ouster from office based on the content of judicial decisions.”
Because states can no longer prevent judicial candidates from announcing views on legal and political issues, some states will very likely abandon judicial elections.To the extent that they do not, a litigant in a case involving a controversial issue will have a strong argument that due process requires disqualification of any judge who is subject to reelection.

The federal courts are steadily (and somewhat condescendingly) chipping away at the restrictions on campaign and political activity state courts believed were necessary to protect the impartiality of an elected judiciary. (For the most recent example, see Siefert v. Alexander, Opinion and Order (U.S. District Court for the Western District of Wisconsin Feb. 17, 2009), permanently enjoining enforcement of three clauses in the Wisconsin code of judicial conduct: the personal solicitation clause, the prohibition on endorsing a partisan candidate, and the prohibition on joining a political party). Therefore, it is crucial that state courts adopt a rule prohibiting a judge from using “court staff, facilities, or other court resources in a campaign for judicial office,” which was adopted by the American Bar Association in 2007 as Rule 4.1(A)(10) of the Model Code of Judicial Conduct. Whatever the First Amendment rights of judges and judicial candidates to solicit campaign contributions, answer questionnaires, and endorse other candidates, there is no conceivable grounds for arguing that judges have a First Amendment right to appropriate for personal political purposes the public resources that should be dedicated to the administration of justice.

Even without a specific rule, the exploitation of the courthouse and court staff for campaigning by judges is impliedly and inherently in the general provisions of the code. For example, in December, the New York State Commission on Judicial Conduct censured a judge who personally solicited support for her candidacy for another court from two attorneys who were in the courthouse and about to appear before her; the Commission found a violation of the general rule requiring a judge to “act in a manner consistent with the impartiality, integrity and independence of the judiciary.” In the Matter of Yacknin, Determination (New York State Commission on Judicial Conduct Dec. 29, 2008).

But adopting an express rule eliminates any question whether such conduct can be sanctioned (see the baffling dissent in Yacknin), ensures that judges are aware of the restriction, and emphasizes the importance of keeping politics out of the courthouse literally as a way of keeping politics from appearing to influence judicial decisions.

So far, Indiana, Kansas, and Montana have adopted Rule 4.1(A)(10), with Indiana wisely adding that it applies to “any political purpose” as well as to campaigning. Other states should follow those states’ lead even if they do not adopt entirely new codes at this time. Minnesota adopted a version that states judges cannot “use court staff, facilities, or other court resources in a campaign for judicial office in a manner prohibited by state law or Judicial Branch personnel policies.” Let’s hope that the law and personnel policies in Minnesota are strict and well-known by judges. The Ohio Supreme Court did not adopt the rule when it adopted a new code; let’s hope provisions in other Ohio laws or rules already cover the issue, but it would have been prudent to refer to those standards sin the code as well.

Judicial campaign fund-raising was one of the major judicial conduct stories in 2008, as it has been in the past and no doubt will be in the future. Campaign contribution and spending records were set in state supreme court races in 2008. In Caperton v. Massey, the United States Supreme Court decided to take a case raising the issue whether $3 million spent by a company’s CEO in support of a supreme court justice’s campaign presents due process considerations when that company appeals a $50 million verdict to the court. The case prompted the filing of nine amicus briefs in support of the petitioner, most representing the position of several individuals or organizations, and five in support of the respondent (see www.brennancenter.org/content/resource/caperton_v_massey). Oral argument is scheduled for March 3, 2009.

Personal solicitation of campaign contributions led to judicial discipline in 2008, with a modern twist to some of the violations. A videotape on YouTube.com showed judicial candidate Willie Singletary telling riders at a motorcycle rally, after offering a blessing for the riders and their bikes, “There’s going to be a basket going around because I’m running for Traffic Court Judge, right, and I need some money. I got some stuff that I got to do, but if you all can give me $20 you’re going to need me in Traffic Court, am I right about that?” The judge further stated, “Now you all want me to get there, you’re all going to need my hook-up right?” He was elected, and the Pennsylvania Court of Judicial Discipline publicly reprimanded him for personally soliciting and accepting campaign funds, conduct “so extreme as to bring the judicial office into disrepute,” and violating the requirement that a judicial candidate maintain the dignity appropriate to judicial office. In re Singletary, Opinion (December 1, 2008), Order (January 23, 2009) (www.cjdpa.org/decisions/jd08-01.html).

The Kansas Commission on Judicial Qualifications ordered a judicial candidate to cease and desist from publicly soliciting campaign contributions after receiving multiple complaints that he had sent attorneys a cell phone text message that stated: “If you are truly my friend then you would cut a check to the campaign! If you do not then its time I checked you. Either you are with me or against me!” Inquiry Concerning Davis, Order (July 18, 2008). The Commission found that the candidate personally solicited campaign contributions and that the intimidating nature of the text message violated Canon 1. The candidate accepted the order.

Later in 2008, however, in a challenge filed by a sitting judge, the U.S. District Court for the District of Kansas held that the clause prohibiting judicial candidates from personally soliciting campaign contributions was unconstitutional. Yost v. Stout (November 16, 2008). That same conclusion was also reached by the U.S. District Court for the Eastern District of Kentucky in 2008 (Carey v. Wolnitzek, Opinion and order (October 15, 2008)) and the U.S. District Court for the Western District of Wisconsin in February 2009 (Siefert v. Alexander, Opinion and Order (February 17, 2009)). The Kansas court found that allowing solicitation “by a campaign committee does not assure that the candidate is unaffected or even unaware of who does and does not contribute to the campaign.” The court also stated that “garner[ing] public support and campaign contributions does not, in itself, suggest that candidates will be partial to their endorsers or contributors once elected” and “the recusal canon is narrowly tailored to cure any impartiality that may result from a candidate personally soliciting contributions.” The Kentucky court concluded that, “while it may be less difficult for a solicitee to decline a request for a contribution when the request is made by a committee, ‘the state does not have a compelling interest in simply making it more comfortable for solicitees to decline to contribute to judicial campaigns.’”

In February 2009, the U.S. District Court for the District of Minnesota upheld the Minnesota version of the solicitation clause because it allows a judicial candidate to personally solicit campaign contributions when speaking to groups of more than 20 persons or by signing a letter and requires a candidate to “take reasonable measures to ensure that the names and responses, or lack thereof, of those solicited will not be disclosed to the candidate . . . .” Wersal v. Sexton (February 4, 2009). The court rejected the plaintiff’s argument that the clause is unconstitutional because recusal is a less restrictive means of preventing bias, noting “the rash of recently filed petitions for Writ of Certiorari indicate that recusal may not be an effective method of preventing bias and ensuring justice.”

I presumably speak for the profession when I say that I generally hold the ABA Standing Committee on Ethics and Professional Responsibility (aka the Ethics Committee) in high esteem. That said, when it recently revisited the Model Code of Judicial Conduct, it reminded me how rare those visits can be. It appears that the Committee has directly addressed judicial ethics only two times in the last twenty-five years. (I did not check prior to 1984.) By any measure, then, the Code is suffering from a lack of attention. Interestingly, the Ethics Committee even has an adjunct component dedicated to Code insight, the Judges Advisory Committee. Interestingly as well, the only two opinions were both issued within the last two years. That is cause for optimism, as it seems that the current Committee (although the roster has changed slightly) is more sensitive to judicial ethics problems.

Your next question might understandably be — what problems managed to catch the Committee’s eye after all of these years? The first is Formal Opinion 07-449, which addresses both the Model Rules and Model Code. With respect to judges, the Committee concludes:

Pursuant to Model Code of Judicial Conduct Rule 2.11(A), the judge in . . . a situation [in which she is being represented in an unrelated matter by an attorney appearing before her] must disqualify herself from the proceeding over which she is presiding if she maintains a bias or prejudice either in favor of or against her lawyer. This disqualification obligation also applies when it is another lawyer in her lawyer’s firm who is representing a litigant before her. However, absent such a bias or prejudice for or against her lawyer, under Judicial Code Rule 2.11(C), the judge may continue to participate in the proceeding if the judge discloses on the record that she is being represented in the other matter by one of the lawyers, and the parties and their lawyers all consider such disclosure, out of the presence of the judge and court personnel, and unanimously agree to waive the judge’s disqualification.

If a judge is obligated to make disclosures in compliance with Judicial Code Rule 2.11(C), refuses to do so, and insists upon presiding over the matter in question, the lawyer’s obligation of confidentiality under Model Rule 1.6 ordinarily would prohibit his disclosing to his other client his representation of the judge without the judge’s consent, rendering it impossible to obtain the client’s consent to the dual representation, as required by Model Rule 1.7(b). The lawyer’s continued representation of the judge in such a circumstance constitutes an affirmative act effectively assisting the judge in her violation of the Judicial Code, and thereby violates Model Rule 8.4(f). The lawyer (or another lawyer in the lawyer’s firm), in that circumstance, is obligated to withdraw from the representation of the judge under Model Rule 1.16.

The second opinion, Formal Opinion 08-452, is even more remarkable, in that it addresses only judicial ethics. Although the opinion gives no clear cut answers, its conclusion is easy to summarize: “A judge who participates in fundraising activities on behalf of a court, including a ‘therapeutic’ or ‘problem-solving’ court, must limit the participation to activities permitted by Model Code of Judicial Conduct Rule 3.7(A). The judge also must ensure that her conduct does not violate Judicial Code Rules 3.1 [general limitations on extrajudicial activities], 1.2 [promoting confidence in the judiciary], or 1.3 [avoiding the abuse of the prestige of judicial office].” Perhaps the clearest answer is contained in Rule 3.7(A)(2), which permits direct solicitation for contributions “only when the persons being solicited are [a] members of the judge’s family or [b] other judges over whom the judge has no supervisory authority.”

In a partial dissent to an order adopting a new code of judicial conduct based on the 2007 ABA Model Code, a justice of the Montana Supreme Court expressed reservations about the prohibition on a judge making public statements on pending cases in light of Republican Party of Minnesota v. White.The dissenting justice accepted it as a good faith effort to provide a rule that conforms with White, but noted that the rule may need to be revisited to accommodate future court decisions.

The dissenting justice need not be concerned.White and its progeny raise no doubts about the constitutionality of the restriction on commenting on pending cases or any code provision that does not involve campaign or political conduct.

In Republican Party of Minnesota v. White, 536 U.S. 765 (2002), the United States Supreme Court held that a state cannot, consistent with the First Amendment, prohibit judicial candidates from announcing their views on disputed legal and political issues.The crucial point for the majority was that the Court has “never allowed the government to prohibit candidates from communicating relevant information to voters during an election.”

In her concurring opinion, Justice O’Connor wrote that in choosing “to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system . . . the State has voluntarily taken on the risks to judicial bias . . . .”Similarly, in his concurring opinion Justice Kennedy emphasized that “the State may not regulate the content of candidate speech merely because the speakers are candidates.”

Thus, the White decision focused exclusively on the needs of voters for information about the candidates in judicial election campaigns and the rights of candidates to communicate with those voters.It did not announce any new-found, unassailable First Amendment rights for judges that would apply outside of the political realm.

In contrast to the announce clause, the restriction on commenting on pending cases applies to judges because they are judges, not because they are candidates, and applies regardless how judges are selected.It does not prohibit speech based on content but simply requires a judge to make any comment on a pending case on the record in the case, in other words, when and where judges are supposed to be commenting on cases in fulfillment of their responsibilities.

No citizen has absolute First Amendment rights, and the public comment restriction reflects a balance most judges freely and willingly accept in deference to the justice system they serve and the public it protects.